A HARARE court is expected to decide today on a case of deliberate HIV transmission, two months after the country decriminalised transmission of the virus.
The Zimbabwe Lawyers for Human Rights (ZLHR) is
representing Lindiwe Ndhlovu, who was accused of deliberately infecting her
boyfriend, the complainant in the matter.
Ndhlovu, through her lawyer Paidamoyo Saurombe, filed an
application for removal from further remand following the decriminalisation of
wilful HIV transmission.
In his application before magistrate Yeukai Dzuda, Saurombe
argued that section 70(1)(1) of the Constitution provides that no person may be
convicted of an act or omission that is no longer an offence.
“Following the repeal of section 79 of the Criminal Code
which former section the accused person was charged under, the provisions of
section 70(1)(1) of the Constitution of Zimbabwe protect the accused person
from any further remand,” Saurombe submitted.
It is further submitted that there is no possibility of a
conviction arising out of an act that is no longer an offence. By operation of
law, on May 27, 2022, the State as dominus litis (the person who is actually
behind legal proceedings, even if they are brought in the name of someone else)
ceased to have any basis to further remand the accused person as there was no
longer a charge recognisable in law.
“It is thus submitted that the accused person must not be
placed on any further remand as the basis of being placed on remand has ceased
by operation of law. In the result, the accused person prays that she is
removed from remand.”
According to court papers, the accused person was arrested
on March 31 this year and appeared in court where she was placed on remand and
the matter was postponed to April 4 for bail consideration.
She was then granted bail on April 4, and the matter was
remanded to April 29.
However, the State said it was still perusing the docket
and conducting further investigations.
In April, Zimbabwe became the second country in Africa to
fully repeal its HIV-specific criminal law after the Marriages Amendment Bill
was signed into law.
Prior to the legislation’s passage, an act of HIV
transmission could result in a sentence of up to 20 years in prison under
section 79 of Zimbabwe’s Criminal Code.
The statute was, however, seldom enforced. Newsday
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